Artificial Insemination and Surrogacy
Artificial insemination and surrogacy contracts are serious undertakings.
Section 7613 of the Family Code recognizes artificial insemination of a mother, and deems the mother’s husband to be the father even if the father is not the biological father (use of donor sperm).
Generally speaking, no matter what the private arrangements are between two consenting adults, an agreement to waive child support will not be enforced if one parent seeks judicial intervention in establishing a support order. Even in a situation wherein the father was misled into believing the mother was using birth control, he cannot legally argue that the false representation by the mother was a fraud to avoid child support obligations (Stephen K. v. Roni L. (1980) 105 Cal.App3d 640). Sometimes, however, the identity of the legal parent is not clear.
Surrogacy contracts have been upheld as contractual arrangements to raise and pay the support of the child for which a surrogacy contract was established. In Buzzanca v. Buzzanca, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280, cert. denied 1998 Cal. LEXIS 3830, a married couple hired a surrogate to have an embryo, genetically unrelated to either the husband or the wife, implanted in the surrogate. After the surrogate became pregnant, the husband and wife split up and the husband refused responsibility for the baby, although the wife agreed to be the baby’s mother. The appellate court concluded that the baby "would never have been born had [the husband and wife] not agreed to have a fertilized egg implanted in a surrogate" (Id., at 1412), thereby upholding the legitimacy of the surrogate contract, and obligating the former husband to pay child support for the baby. The court, in part based its decision on an older case, People v. Sorenson (1968), 68 Cal.2d 280, and the first California surrogacy case, Johnson v. Calvert (1993), 5 Cal.4th 84. In Sorenson, the California Supreme court went as far as to say that a husband could be held criminally liable for failure to pay child support to his wife if she gives birth to a child born as a result of artificial insemination using sperm donated by another man. The reasoning being that the husband caused the child’s birth (Sorenson, supra) and consented to the artificial insemination (In re Baby Doe, (S.C. 1987) 353 S.E.2d 877. 878; see also Gurksy v. Gursky (1963) 39 Misc.2d 1083, 242 N.Y.S.2d 406, 411-412., and Anonymous v. Anonymous, (1964) 41 Misc.2d 886, 246 N.Y.S.2d 835, 836-837).
Copyright © 1999 Roy A. Barry, all rights reserved.